As you may have noticed, we have been moving away from simple calling-out-copies posts in favor of more in-depth legal and business of fashion articles, but every now and then, there are copies that are simply too difficult to ignore. For instance, consider Target’s very blatant, very obvious takes on Paris-based design house, Céline. The retail giant, which came under fire a few years ago with New York-based brand Proenza Schouler for its particularly egregious PS1 copies, has taken on some of LVMH-owned Céline’s most celebrated bag styles: the Trapeze bag and the Luggage tote.
You’ve seen the aforementioned Céline styles, as they have both been “must have” bags over the past several years. They have been photographed on the arms of practically every Hollywood starlet, in a ton of street style photos during the various fashion weeks, in an array of editorials in the most prominent fashion publications, and have been highlighted in the brand’s own ad campaigns. In short, you’re not a stranger to these designs, whose demand has not waned much since their launch, and neither is Target.
So, enter: Target’s Women’s Satchel Handbag and its Women's Top Handle Colorblocked Winged Satchel Handbag (below, right) – both are obvious takes on the Céline Trapeze bag (below, left). There is also Women's Tote Handbag Colorblock (above, right), which is a dead-ringer for Céline’s Luggage Tote (above, left). They are being offered by Target’s in-house collections: Mossimo and Merino.
While all fast fashion copying is ethically questionable, it is often perfectly legal in terms of intellectual property. However, Target’s Céline copies likely present legal issues. Both of the bags at issue have been on the market for sometime now (at least 5 years), and have become recognizable to the public as indicative of their source: Céline. As such, they are most likely eligible for trade dress protection, which would give Céline grounds to demand that Target cease all sales, manufacturing and marketing of the bags. Note: trade dress, which is a subset of trademark, provides protection for the configuration of a product itself – the design and shape of the product – if that trade dress has secondary meaning amongst the general public and thus, allows the design, itself, to serve as an indicator of source much like a brand’s name or logo.
An array of Circuits, including New York’s Second Circuit court, look to the following factors to gauge secondary meaning:
1. Advertising expenditures;
2. Consumer studies linking the mark to the source;
3. Unsolicited media coverage of the products;
4. Sales success;
5. Attempts to plagiarize the mark; and
6. Length and exclusivity of the mark’s use.
If we take these factors into account (we will look at a few in some depth), it seems like this could be an easy win for Céline. For instance, while we cannot know the brand’s advertising expenditures for certain, we do know this: the Luggage tote was front and center in the brand’s Fall/Winter 2010, Spring/Summer 2011, Fall/Winter 2011, and Spring/Summer 2014 ad campaigns. The Trapeze was in its Fall/Winter 2011 and Fall/Winter 2012 campaigns. That certainly amounts to some noteworthy advertising expenditures.
If we look to the third factor, there is similarly strong evidence weighing in Céline’s favor. The number of editorials in key fashion magazines and on their websites is significant. Moreover, articles that indicate that these two styles are “it” bags are particularly helpful for our cause and there is no shortage of them. A few examples: “The Céline Luggage Bag Confirms 'It' Status With Booming Sales Reported By Retailers” from Grazia; “New York Fashion Week’s ‘It’ Bag” from WWD about the Luggage tote;
“The 'It bag' of the last decade, the Luggage tote,” from The Telegraph; “The History of the It Bag” courtesy of Vogue; and “Céline’s IT Bag - The TRAPEZE” from Elle. Also to be considered here, the number of photos and articles dedicated to celebrity style that include the Luggage tote and Trapeze bag. Everyone from Rihanna and the Kardashians to Miley Cyrus, Reece Witherspoon and a legion of top models (Miranda Kerr, Rosie Huntington-Whiteley, etc.) have been spotted with the Luggage tote and Trapeze, further upping its level of exposure and recognizability.
The fifth factor, attempts to plagiarize the mark, is another easy one, as indicated by a quick Google search of “Céline Trapeze look for less” or “Céline Luggage tote lookalike.” The number of copies – most of which are particularly egregious – is truly quite vast.
In short, Target is not just being a jerk here; it has probably crossed some legal lines, as well. Oh, and if you are not convinced that Target knows exactly what it is doing, consider the fact that one of the Trapeze copies is included in the header image on its accessories page. Target obviously anticipates this bag being a hot seller, and an indication that a bag is a good copy? It sells like crazy.